HP HC | Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness

Himachal Pradesh High Court

Himachal Pradesh High Court: Sandeep Sharma, J., allowed the petition and quashed the impugned order dated 17-07-2017.

 The facts of the case are such that husband filed divorce petition under Section 13 of the Hindu Marriage Act, against the wife on the ground of cruelty. During the pendency of aforesaid divorce petition, husband filed an application under Order 18 Rule 17-A read with Section 151 CPC seeking therein permission of the Court to allow him to lead additional evidence, which may be necessary and just for the proper adjudication of the case. It was averred that he is in possession of original recording of the conversation, which is intended to be adduced on record by way of additional evidence would show that father of the wife has openly threatened him as well as his family members. The said application was allowed. Being aggrieved and dissatisfied with the order, petitioner (wife) approached the Court in the instant proceedings, praying therein to set-aside the order.

The Court observed that that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. It was further observed that wife in his examination-in-chief or cross examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels the Court to agree that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna.

The Court observed that basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

The Court held “since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.”[Dr Honey Johar v. Ramnik Singh Johar, 2018 SCC OnLine HP 3295, decided on 21-12-2018]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For the Petitioner: Mr. Anuj Nag, Advocate.

For the Respondent: Mr. R.G.S. Saini, Advocate

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